In re FERRARA

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Judge Andrea J. Ferrara, respondent, has served
as judge in the Third Judicial Circuit Court in Wayne County
since January 1993.[1] On February 9, 1998, the Judicial Tenure
Commission recommended that she be removed from office for the
remainder of her term. We review this matter pursuant to Const
1963, art 6, Sect. 30, [2] and accept the recommendation that
respondent should be removed from office because her conduct
"before and during the hearing, independently warrants the
most severe sanction." [3]

Respondent’s behavior from the time the
newspaper medium made public the contents of the tapes containing
racial and ethnic slurs made by the respondent, through the
judicial misconduct hearing, and up to respondent’s statements to
this Court at her appeal hearing, reveal that respondent has
neither the temperament, judgment, nor character to be a member
of the judiciary. Our decision is not based on the actions that
led to the initial charges of misconduct, the racial and ethnic
slurs made by respondent in private telephone conversations with
her ex-husband on eleven occasions between 1992 and 1993.
Instead, our finding of misconduct meriting removal is premised
upon respondent’s conduct after the derogatory statements were
made public by the press and other media. Thus, it is not
necessary to adopt the commission’s finding regarding these
statements or to determine whether the tapes were properly
admitted in light of the federal Wiretapping Act, 18 USC 2515.[4]

Although we do not base our judgment on the
statements, and therefore do not reach the respondent’s defenses
regarding them, we unequivocally state our view that whatever
respondent’s right to her own private opinion, a person harboring
and communicating such revolting views is unworthy of holding the
privileges and responsibilities of public office. Indeed, the
mean-spirited, crude, and biased nature and tone of the
statements that were made public are inexcusable and unacceptable
from a judge. See, e.g., In re Bennett, 403 Mich 178, 199;
267 NW2d 914 (1978).

I. FACTS

This proceeding against respondent, Third
Circuit Judge Andrea J. Ferrara of Wayne Circuit Court, stems
from the highly inflammatory contents of eleven recordings, [5]
which were made public on February 19, 1997, by a Detroit
newspaper article entitled, "Recordings indicate judge
slurred Jews, blacks and others." The article reported that
in seven of those conversations Ferrara, who is white, used the
word "nigger" or variations, and also made other racial
and ethnic slurs. The article read in part:

She used the word to criticize a black circuit
court judge, question the loyalty of a black political supporter
and complain about a coworker at the U.S. Immigration and
Naturalization Service, where Ferrara worked as a trial attorney
from 1988 to 1992.

Ferrara also used the word to express concern
about people who might show up if she had a garage sale or those
her children might encounter if Tarjeft took them shopping at a
mall or camping at a Detroit-area park.

She also used the derogatory remark to express
concern that her ex-husband’s car might break down with the
children in it in a predominantly black neighborhood.

"Well all you need is a breakdown in
niggertown," Ferrara said.

In another conversation, Ferrara called her
husband a vicious person with a sick mind.

"Maybe I do," Tarjeft said.
"Maybe there’s some Sicilian blood in the background, who
knows."

"I know there is and that’s nigger."
Ferrara said. "So, that’s why you’re as sick as you
are."

Ferrara called a circuit court judge with whom
she was unhappy a "little whore Jew."

She also said she was depressed that an Arab
family had moved nearby and said she didn’t want to live across
the street from "a bunch of you-know-whats." She said,
"They sit there and sit on the porch gaggling
. . . ."

These statements were recorded in 1992 and 1993
by respondent’s ex-husband, Tarjeft, who made the recordings in
an apparent attempt to gain ammunition for his very hostile
custody battle with respondent over their twin minor sons.
Respondent claims that in September 1996, to avoid an arrearage
hearing, Tarjeft extorted respondent by threatening to destroy
her career by releasing the tapes should she not capitulate to
his demands regarding the arrearages, custody arrangement, and a
fee dispute with another attorney. Tarjeft told the press that he
made the tapes to level the playing ground between the
ex-spouses. He apparently felt he was at a constant disadvantage
to respondent in legal proceedings given her position as a judge.

After the publication of the statements made by
respondent, the Judicial Tenure Commission initiated an
investigation into the matter. [6]

The investigation led to the filing of Formal
Complaint No. 52 by the commission’s examiner, who charged
respondent with several instances of judicial misconduct for
communicating racist and other ethnically discriminatory views,
bias, or the appearance of bias against these racial and ethnic
groups. The examiner also charged respondent with publicly
misrepresenting those communications during a February 1997 press
conference that respondent herself convened. [7]

In May 1997, this Court temporarily suspended
respondent pending the final disciplinary determination.

On June 11, 1997, we appointed the Honorable
Vesta Svenson as master to preside over the hearing of the
complaint against respondent. During the course of the hearing, a
second amended complaint was filed in early October 1997 to
conform to the proofs pursuant to MCR 9.124, and to include
charges of obstruction of justice from the October 3, 1997,
proceedings. These additional charges were based on
(1) testimony by respondent’s minor twin son, Christopher
Tarjeft, that respondent asked him to destroy the tapes, and
(2) respondent’s refusal to answer further questions
regarding the tapes on the basis of alleged privacy rights under
the federal wiretapping statute.

A third amended complaint was filed on October
29, 1997, and included additional charges of conduct clearly
prejudicial to the administration of justice, fabrication of
evidence, obstruction of justice, dishonesty, and fraud. These
charges were based on respondent’s attempts to introduce a letter
purportedly written by Avela Smith, a concerned citizen who
became acquainted with respondent several years before the
release of the tapes and the surrounding negative publicity.

In her defense, respondent presented twenty-two
witnesses, including herself. Many of the witnesses were
African-Americans or of Arab descent, and were therefore members
of some of the groups of which respondent spoke in the tapes.
These witnesses all testified that they saw no discriminatory
conduct nor heard any use of discriminatory language by
respondent in the years they had known her. Several witnesses
also indicated that, even if they did believe respondent made the
statements in the tapes, they would not change their view of her
as a fair and nonracist person.

On January 5, 1998, after nine days of hearings
and after written closing arguments, the master filed a
twenty-two page report that culminated in a finding that
respondent was indeed guilty of the charged misconduct. Both
parties filed written objections, and on February 9, 1998,
following oral argument, the commission adopted the master’s
findings of fact and conclusions of law, including all but the
following evidentiary rulings:

1. The Master found that there was no
unambiguous evidence to suggest that Respondent ever displayed
racial prejudice or ethnic bias while on the bench.

While the Commission agrees with the Master’s
comments, the Commission notes that Formal Complaint No. 52, as
amended, does not charge Respondent with misconduct on the bench
and therefore that issue was never litigated.

2. The tape recordings of Respondent’s
comments were requested by the Commission after they became
publicly disclosed by the media. The Commission ultimately
subpoenaed the original tapes for prehearing testing by both
parties and for the introduction of evidence at the hearing.

3. The Master misstated, on page 21 of her
report, that Respondent violated MCR 9.105(A) and MCR
9.105(C)(4), apparently instead of MCR 9.205(A) and MCR
9.205(C)(4). The Commission finds, in any event, that Respondent
did violate MCR MCR 9.205(A) and MCR 9.205(C)(4).

4. The Commission agrees with the Master’s
conclusion, on pages 7-8 of her report, that Respondent’s voice
and words are heard on the tape recordings. The Commission
further notes that at the hearing before the Commission which
took place on February 9, 1998, Respondent’s counsel admitted
that Respondent had made the tape recorded statements at issue in
this case.

The commission found that respondent engaged in
misconduct within the meaning of Const 1963, art 6, ‘ 30, as
amended, and MCR 9.205.

By her racist remarks and racial and ethnic
slurs, her public misrepresentations, her conduct at the hearing,
her fabrication and misrepresentation of evidence, Judge Ferrara
has violated standards of professional and judicial propriety
governing her behavior. Aside from the bigoted comments, Judge
Ferrara’s conduct, before and during the hearing, independently
warrants the most severe sanction. By her conduct Judge Ferrara
has seriously eroded the public confidence in the judiciary of
this state.

In light of the serious nature of Judge
Ferrara’s conduct and its negative impact on the administration
of justice and the judicial system, as well as violations of the
Michigan Code of Judicial Conduct, this Commission finds that
Judge Ferrara should be removed from judicial office.

II

Under Const 1963, art 6, Sect. 30 and MCR
9.223- 9.225, we are charged with reviewing this matter. Our de
novo review[8] of the extensive record convinces us that the
master effectively insured that the hearing was conducted in a
fair and proper manner, and that it conformed as nearly as
possible to the rules of procedure and evidence governing trial
of civil actions in circuit court. MCR 9.211(a).

Respondent cites approximately forty-seven
specific objections to the master’s report. We find it
unnecessary to address the objections regarding admission of the
tapes into evidence because our conclusion is based solely on the
other grounds of misconduct. As to the remaining issues, we find
respondent’s arguments without merit and decline to address them
except where necessary to the discussion of grounds that support
our finding of misconduct. [9]

III. GROUNDS FOR MISCONDUCT

There are two sources that establish the
standards of judicial conduct. MCR 9.205 sets forth the grounds
for a finding of judicial "misconduct" and the possible
forms of discipline that can be imposed for misconduct. In
relevant part, MCR 9.205(C) provides:

(C) Misconduct. A judge is guilty of misconduct
in office if:

(1) the judge is convicted in the
United States of conduct which is punishable as a felony under
the laws of Michigan or federal law;

(2) the judge persistently fails to perform
judicial duties;

(3) the judge is habitually
intemperate within the meaning of Const 1963, art 6, ‘ 30;

(4) the judge’s conduct is clearly prejudicial
to the administration of justice . . . .

The other source governing judicial conduct is
the Code of Judicial Conduct. In relevant part, those canons
provide:

Canon 1 A judge should uphold the
integrity and independence of the judiciary.

* * *

Canon 2 A judge should avoid
impropriety and the appearance of impropriety in all activities.

A. Public confidence in the judiciary is eroded
by irresponsible or improper conduct by judges. A judge must
avoid all impropriety and appearance of impropriety. A judge must
expect to be the subject of constant public scrutiny. A judge
must therefore accept restrictions on conduct that might be
viewed as burdensome by the ordinary citizen and should do so
freely and willingly.

B. A judge should respect and observe the law.
At all times, the conduct and manner of a judge should promote
public confidence in the integrity and impartiality of the
judiciary. Without regard to a person’s race, gender, or other
protected personal characteristic, a judge should treat every
person fairly, with courtesy and respect.

A finding of misconduct under the court rules
and judicial canons must be based on a preponderance of the
evidence. In re Leon Jenkins, 437 Mich 15, 18; 465 NW2d
317 (1991); In re Loyd, 424 Mich 514, 522; 384 NW2d 9
(1986).

As previously stated, the commission adopted
the master’s finding and recommended that respondent be removed
from the bench because of the following acts of misconduct:
"her racist remarks and ethnic slurs," as well as
"her public misrepresentations, her conduct at the hearing,
her fabrication and misrepresentation of evidence." At this
stage of the judicial discipline proceedings, we must consider
whether to adopt the commission’s recommendation.

The commission found that respondent committed
misconduct by publicly misrepresenting that the tapes were
"fake" at her press conference, attempting to introduce
a fraudulent letter into evidence and thereby perpetrating a
fraud on the court, and engaging in conduct throughout the
proceedings that was "inappropriate, unprofessional, and
demonstrated a lack of respect" for those proceedings.

A. Statements to the Press and
the Public

The commission adopted the master’s findings of
fact to support the charge of misconduct on the basis of
respondent publicly misrepresenting that the tapes were
"’fake’ when she knew she had made the statements and had,
in fact, premised a $100,000,000 lawsuit on the fact that she had
been tape recorded while making the
statements . . . ."

On February 19, 1997, respondent called a
televised news conference and stated: "The tapes are a fake.
I have listened to the tapes and that is not my voice contained
on those tapes." While she told this Court that she did in
fact listen to the tapes before this conference, her testimony to
the master, though often conflicting and evasive, indicated she
only listened to some of the taped conversations in her
attorney’s office before this press conference. Because she did
not listen to the tapes in their entirety or have them examined,
she could not honestly and conclusively state that her voice was
not on the tapes and that they were fakes. More importantly,
respondent later clarified that she did, in fact, recognize her
voice on some portions of the tape.

While simultaneously denying that her voice was
on the tapes, respondent filed a federal suit against the paper
that originally published the taped statements, the reporter who
authored the article, and Tarjeft. [10] Paragraph 11 of that
verified complaint, signed by respondent, stated unequivocally
that the taped conversations did, in fact, contain respondent’s
voice.

"[t]he proper administration of justice
requires that the Commission view the Respondent’s actions in an
objective light. The focus is necessarily on the impact his
statements might reasonably have upon knowledgeable observers.
Although the Respondent’s subjective intent as to the meaning of
his comments, his newly exhibited remorsefulness and belated
contrition all properly receive consideration, any such
individual interests are here necessarily outweighed by the need
to protect the public’s perception of the integrity of the
judiciary."

In this case, respondent has reduced the number
of considerations because she never exhibited true remorsefulness
for her misleading comments to the public and has never shown
that she understands the damage to the judiciary that occurs when
a judge offers, as fact, public statements that are not
reasonably supported, researched, investigated, or believed to be
true.

Respondent displayed a similar disregard for
the truth, as well as a lack of candor with the tribunal, when
she answered questions before the master and this Court regarding
whether she uttered the ugly words disseminated to the public by,
and attributed to her in, the press. In fact, the only time
respondent has ever accepted responsibility for uttering the
taped statements was not by her own accord, but by an admission
of her counsel during oral argument before the commission
regarding the master’s recommendations on February 9, 1998.
However, when respondent appeared before this Court to appeal the
commission’s recommendation, she refused to directly answer
questions regarding whether her voice uttered the racist
statements on the tapes. She told this Court that the "taped
conversations were in the nature of personal and private disputes
with my ex-husband before I became a circuit court judge."
[11] Respondent then made the following nonsensical statement
that would indicate a total failure by respondent to accept what
every judge must be able to recognize, the overwhelming weight of
the evidence, which in this case indicates that she did make such
statements. [12] Respondent stated:

I deeply regret having said any of the comments
attributed to me on the tapes. I never intended to offend. [13]

In refusing to accept responsibility for her
comments, respondent ultimately deprived herself of the
opportunity to truly and sincerely apologize for her conduct. Her
unsupportable denials and inconsistent statements to the media,
the public, the commission, and this Court stand as clear
evidence of her inability to be forthright, to avoid appearances
of impropriety, and to fulfill the ethical obligations of a
judicial officer, who must be "perceived to be a person of
absolute integrity. When a judge’s character and morals come into
question not only do the people lose respect for him as a person,
but worse, respect for the Court over which he presides is lost
as well." [422 Mich 1211.]

Her statements to the press and the public, as
well as to the master and this Court, have clearly prejudiced the
administration of justice, evidence a fundamental lack of respect
for the truth-seeking process, and, furthermore, if left
unrebuked, threaten to severely compromise the public’s
confidence in the judiciary’s integrity. Accordingly, we find
respondent’s actions to constitute misconduct in violation of
Canons 1, 2A, 2B, and MCR 9.205(C)(4).

B. Attempt to Introduce a
Fraudulent Letter Twice

The commission further found that respondent
attempted to fabricate evidence, obstruct justice, and
"perpetrate a fraud upon the court in the form of a
fabricated letter she attempted to introduce through her witness,
Avela Smith . . . ."[14] Specifically,
the commission alleged that respondent had attempted to mislead
the court, or at least create a false impression, with respect to
the time, motivation, and scrivener of the letter.

Respondent’s first witness was Avela Smith, an
African-American woman, whom she first encountered at, and
subsequently drove home from, a 1994 political rally on Belle
Isle in Detroit. Ms. Smith testified that she had no subsequent
contact with respondent until 1997, after the statements were
published. After hearing the negative press and charges of racist
behavior leveled against respondent, Ms. Smith offered to testify
on respondent’s behalf.

Days before testifying, and well after the
hearings began, Ms. Smith and respondent met at a Detroit-area
McDonalds restaurant to draft a letter purportedly meant to be
sent to the "Michigan Chronicle." At no point before
moving for admission of the letter was the recent date of the
letter or the identity of the scrivener elicited. It was only
after respondent’s counsel moved to admit the letter that, on
voir dire, the examiner uncovered the critical facts regarding
the timing of the letter and identified the scrivener as the
respondent. [15]

Furthermore, the examiner revealed, on voir
dire and later on cross-examination, that the witness could
neither define the term "subterfuge" nor explain the
political reasoning behind the statements contained in the last
paragraph of the letter. The master found the witness to be
credible, but that

[h]ad it not been for the Examiner’s voir dire,
I am doubtful that the letter’s recent vintage would have been
revealed or, indeed, that it has essentially been drafted by
Respondent.

***

It is clear from Respondent’s defense that she
placed great importance on the testimony of character witnesses
and understandable concern over negative publicity and negative
correspondence received by Judge Rashid. It is equally clear from
her later testimony that she gave little or no thought to the
consequences associated with her participation in the production
of the Smith letter or that its existence would have a negligible
evidentiary impact on the outcome of the formal hearing.

We agree with the commission’s findings of fact
and conclusion of law pertaining to respondent’s attempts to
introduce the letter. Judge Ferrara’s failure to divulge the
source and circumstances surrounding the Smith letter constitute
an obstruction of justice and lack of candor with the tribunal
violative of Canons 2(A) and (B) and MCR 9.205(C)(4). Judge
Ferrara’s silence while Ms. Smith was cross-examined regarding
the source of the letter, which Smith vaguely identified as
"a friend," shows a lack of candor with the tribunal.
Before cross-examination, the evidence presented was clearly
intended to create the false impression that the letter was
written before the hearing, to respond to the negative press, and
without any assistance by Judge Ferrara. [16] Respondent’s
counsel informed this Court that she did not tell him the
critical fact that she wrote the letter when she handed it to him
just moments before he called Ms. Smith to the stand.

As if to add insult to injury, respondent made
a second attempt to admit the contents of the Smith letter. Only
two days after the initial attempt to admit the letter,
respondent secured another letter, expressing the same sentiments
as the original, from the witness’ house. This second letter
differed from the first by containing a date, October 29, 1997,
and being written entirely in Ms. Smith’s own hand-writing, as if
such changes would make amends for the prior attempted fraud on
the Court. Even on respondent’s second attempt at admission, when
questioned more directly about the political analysis contained
in the last paragraph, Ms. Smith still could not explain what
again were being presented as her sentiments. This second attempt
at admission is glaring evidence of respondent’s inability to
admit her shortcomings and to conform to judicial standards of
conduct. We agree that deception of this sort is
"’antithetical to the role of a Judge who is sworn to uphold
the law and seek the truth’ . . . ." In
re Collazo, 91 NY2d 251, 255; 691 NE2d 1021 (1998), quoting Matter
of Myers, 67 NY2d 550, 554; 496 NE2d 207 (1986).

C. Other Grounds for Misconduct

We also adopt the commission’s findings that
"Respondent’s conduct throughout the formal hearing was
inappropriate, unprofessional, and demonstrated a lack of
respect" for the judicial discipline proceedings. While the
incidents are too numerous to recount, such as respondent’s
failure to observe appropriate courtroom decorum by interrupting
opposing counsel and the master on several occasions and by
making snide side comments, we do note a few particularly
egregious examples.

Respondent’s evidence and testimony were
replete with half-truths and misleading statements, such as when
respondent attempted to introduce evidence that her ex-husband
planted a "bug" (electronic surveillance device) on her
phone line. Respondent’s witness Robert Maul testified that he
discovered the "bug" on her home phone line and that
the "bug" was subsequently turned over to the Grosse
Pointe police. Respondent also testified that Tarjeft had
installed such a "bug" on her home phone line. On
cross-examination, the examiner questioned respondent about her
subsequent attempts to determine whether the FBI, to whom the
police gave the "bug" for testing, found that the
device was, in fact, operable. Initially, respondent testified
that she made follow-up calls to the police roughly once a month
for a year. Upon further questioning, however, she effectively
recanted this claim and simply stated that she made several calls
after filing the report. While respondent attempted to admit the
police report, she failed to indicate that the police file also
contained the FBI report regarding the "bug." That
report concluded that the "bug" was not an electronic
surveillance device at all, but merely a piece of metal.

On other occasions respondent’s testimony was
so unnecessarily vague as to hinder the proceedings and
significantly interfere with the administration of justice. This
misconduct is particularly evident in respondent’s testimony
directly after respondent agreed to resume questioning about the
tapes in an effort to purge the master’s civil contempt order.

This testimony came after respondent claimed
privacy rights under 18 USC 2515, the federal wiretapping
statute, once the tapes were admitted into evidence. This
privilege was asserted despite her voluntary statements regarding
the tapes to the press, and despite her prior testimony on the
subject. Respondent raised arguments similar to those heard at
length and found to be unpersuasive by the master earlier in the
proceedings. The master found the examiner’s arguments that the
federal law did not provide a privilege, and, even if it did, it
was effectively waived by respondent, given her comments to the
press and prior testimony, to be persuasive. Accordingly, the
master granted the examiner’s motion for civil contempt, but,
after filing of additional memorandum, denied the examiner’s
request for a default. Respondent was informed that the contempt
order could be purged by answering the examiner’s questions
regarding the tapes. Respondent agreed to answer these questions,
but in so doing, respondent offered evasive testimony
illustrative of her failure to accept and truly comply with the
master’s order. For example, respondent insisted she could not
remember hearing the taped statements that were played for her in
court just six days earlier and also refused to divulge her phone
number when asked. The continued examination proved futile and
was quickly concluded.

III. APPROPRIATE DISCIPLINE

Judicial disciplinary proceedings are unique
and "fundamentally distinct" from all other criminal or
civil legal proceedings. 437 Mich 28. The purpose of such
proceedings is to "protect the people from corruption and
abuse on the part of those who wield judicial power." Id.
Our primary concern in determining the appropriate sanction is to
restore and maintain the dignity and impartiality of the
judiciary and to protect the public.

We adopt the commission’s recommendation and
find respondent’s untruthful and misleading statements to the
public and press, her attempt to commit a fraud on the Court by
twice attempting to introduce the Avela Smith letters, and her
unprofessional and disrespectful conduct during each stage of the
proceedings to constitute misconduct in violation of the court
rules and judicial canons.

Indeed, we demand strict compliance with the
letter and spirit of these rules and canons because, without it,
our judicial system, which depends on public confidence in the
integrity and impartiality of the judiciary would surely fail.
Judges, occupying the watchtower of our system of justice, should
preserve, if not uplift, the standard of truth, not trample it
underfoot or hide in its shady recesses. This is precisely why
judges should be exemplars of respectful, forthright, and
appropriate conduct.

The effectiveness of our judicial system is
dependent upon the public’s trust. Violations such as those
described herein, which mislead, misrepresent, and deceive with
respect to evidence and facts in legal proceedings, so seriously
undermine that trust and are so fundamentally contrary to
judicial temperament and obligation as to require the most severe
form of disciplineCremoval. Our decision is based on the nature,
extent, and frequency of the misconduct. Accordingly, we adopt
the commission’s recommendation to remove respondent because we
find it is necessary to restore and maintain the dignity and
honor of the judiciary and, most importantly, to best protect the
public.

Pursuant to MCR 7.317(C)(3), the clerk is
directed to issue the judgment order forthwith.

I concur with the result reached by the
majority today. I write separately, however, to clarify the exact
basis on which I reach this decision.

I

The Court has decided to base the action taken
today only on conduct other than the respondent’s statements as
recorded on the various tapes. In doing so, the Court declines to
resolve the legitimate constitutional questions raised by counsel
for the respondent. I agree with this decision because prudence
requires that we continue to resist addressing constitutional
questions unless truly necessary. Given the action taken by the
Court today, there is no need to look further and reach the
constitutional questions raised by counsel for the defense.

II

Of the conduct, other than the statements,
which the respondent is charged with, I base my concurrence in
the sanction of removal from office on the respondent’s actions
regarding the Avela Smith letter. As the majority’s recitation of
the facts aptly demonstrates, respondent undertook a substantial
amount of effort to present this letter to the master and to see
that it was offered as something other than what it truly was.
While respondent is clearly entitled to present a defense, and to
do so vigorously, she is not entitled to attempt to perpetrate a
fraud upon the master in the course of doing so. I find this
conduct to violate MCR 9.205(C)(4), being conduct clearly
prejudicial to the administration of justice. Furthermore, such
conduct must also be found to violate the Code of Judicial
Conduct, Canon 2, because it clearly presents both an appearance
of, and actual, impropriety, as well as indicating a failure to
respect and observe the law and promote public confidence in the
judiciary.

My review of our past decisions in judicial
discipline matters leads me to believe that a significant
suspension would be consistent with our past decisions in these
matters. Unfortunately, however, our past decisions provide only
limited guidance in judicial tenure matters, where our goal must
be the protection of the public and the preservation of the
integrity of our judicial system. In doing so, we consider
conduct that is often widely divergent, and circumstances that
are sometimes unique. There are many underlying circumstances to
this case, some of which we have declined to review. In
attempting to relate other circumstances herein to the underlying
basis for discipline, I believe the majority visits conduct that,
although often distasteful and questionable, is nonetheless
insufficient to amount to a basis for increased sanctions.

I decline to join in that portion of the
majority opinion addressing conduct other than the Avela Smith
letter. I find that our action today, however framed, is
equivalent to a suspension of approximately two and one half
years. Keeping this in mind, I am able to agree with the
majority’s decision to remove respondent from the bench. While
the respondent will be able to again run for judicial office if
she so chooses, like the majority, I share a faith that the
electorate will have no desire to return respondent to the bench.

[1] Respondent’s current term expires in 2001.
Before her service as a Third Circuit judge in Wayne County,
respondent served as a 33rd District Court judge from
January 1981 through 1986. She was not reelected to this post,
but did serve as a judge by appointment in the 36th
and 19th District Courts in Wayne County.

[2] Article 6, Sect. 30 provides in relevant
part:

On recommendation of the judicial tenure
commission, the supreme court may censure, suspend with or
without salary, retire or remove a judge for conviction of a
felony, physical or mental disability which prevents the
performance of judicial duties, misconduct in office, persistent
failure to perform his duties, habitual intemperance or conduct
that is clearly prejudicial to the administration of justice.

[3] We adopt the commission’s recommendation
for removal from office, "in view of the egregiousness"
of respondent’s conduct, and must note that, in so doing,
"we are not so cynical about the electoral or appointive
process that we are concerned about the respondent’s re-entry
upon the judicial scene." In re Callanan, 419 Mich
376, 389; 355 NW2d 69 (1984). See also 437 Mich 29-30.

Furthermore, it should be clear that, should
respondent decide to seek election to judicial office, respondent
cannot be characterized as an incumbent because she has been
removed, not merely suspended, from office.

[4] Similar reasoning was employed by this
Court in In re Leon Jenkins, 437 Mich 15, 28-29; 465 NW2d
317 (1991), where we stated:

While the unique character and purpose of
judicial disciplinary proceedings might incline us not to apply
the exclusionary rule in this context, we need not reach that
conclusion in this case. The record contains more than ample
evidence, apart from the recorded conversations, to support the
findings of the master and the commission.

In that case, we held that, even if the
recordings were erroneously admitted, we find no miscarriage of
justice, given the strength of the independent grounds for
discipline. Therefore, according to MCR 9.203(D), the
investigation or disciplinary proceedings could not be later
found invalid. Id. at 29.

[5] The original recordings were made by
respondent’s ex-husband, Howard Tarjeft, from whom respondent was
divorced in 1985. The excerpts printed in the press were from a
tape containing damaging excerpts of conversations between the
ex-spouses that Tarjeft recorded in 1992 and 1993, while
respondent was running for office and after she was elected. He
turned the tapes over to the newspaper as part of an on-going and
very hostile battle between the ex-spouses over custody of their
minor twin sons.

The separation agreement awarded joint custody
of the boys to respondent, sole personal custodian, and Tarjeft
was ordered to pay the minimum allowance in child support. That
order was never modified. However, respondent and Tarjeft
initiated numerous legal battles over the years as a result of
their on-going custody disputes. Respondent is currently seeking
payment of allegedly significant arrearages and has alleged,
inter alia, that Tarjeft is guilty of kidnaping and filing
frivolous complaints with social services alleging abuse and
neglect. Tarjeft has filed various civil, professional, and
criminal claims against respondent as well.

[6] It is undisputed that respondent never
filed a formal, written response to the commission’s letter of
inquiry, commonly referred to as a "28-day letter."
Respondent maintains that, in essence, her failure to respond was
due to a failure to communicate with her attorney, and that she
was under a great deal of stress and in a state of general
confusion after the release of the tapes.

[7] This original complaint was amended to
include, in paragraph 13, an allegation that respondent also made
racist statements to her sons and two other individuals while she
was a circuit court judge. Subparagraphs 13(a) and (b) were
subsequently dismissed by the examiner.

[8] In re Somers, 384 Mich 320; 182 NW2d
341 (1971).

[9] Furthermore, we do not base our decision on
Christopher Tarjeft’s testimony, given its obvious
inconsistencies and indicia of bias in favor of the boy’s father,
Tarjeft.

[10] The suit was filed on March 20, 1997. Case
No. 97-71136. The paper and the reporter subsequently were
dismissed from the suit on May 6, 1998; however, the action
against Tarjeft is on-going.

[11] This assertion is not true, because some
of the taped conversations occurred after January 1, 1993, when
respondent assumed the Third Circuit bench. Respondent seemed to
understand this point, as she admitted it in her brief to this
Court.

We not only question the accuracy, but also the
relevancy of this assertion. MCR 9.205(E) clearly states that
conduct that occurred "before or after the respondent became
a judge" may be the subject of disciplinary proceedings and
may, therefore, constitute "misconduct in office."

[12] The tapes were authenticated and declared
unaltered by two experts, one of the commission’s choosing and
the other of respondent’s. Further, the master and the commission
found the voice on the tapes to be hers, as did several of the
witnesses who testified in respondent’s case in chief.

[13] When pressed regarding the meaning of this
curious statement, respondent engaged in the following exchange:

Judge Ferrara: Did I say those things? I
have no recollection of saying those things and there’s been a
finding that I said those things, and I deeply regret having said
those comments. I can’t deny that that sounds like my voice on
that tape. I honestly do not remember saying those things. Those
comments and statements are totally out of
character. . . . And I can attest that nobody,
nobody has ever heard me talk like that ever.

Justice Weaver:
. . . Do you admit that you said it on the tape or not.
It’s simple. Either yes or no.

Judge Ferrara: If I said
those words, they were spoken in the heat of the moment and do
not reflect my attitudes or beliefs.

Justice Weaver: Still "if."
[Emphasis added.]

[14] The examiner’s second and third amended
complaints alleged that respondent obstructed justice on three
separate occasions. We only address the allegation contained in
the examiner’s third amended complaint regarding a letter that
respondent attempted to introduce through witness Avela Smith.
The letter is as follows:

JUDGE FERRARA IS NO RACIST

It is said that actions speak louder than
words. Avelia [sic] Smith, a Detroit resident says she’s fed up
with the one-sided bias reporting of Judge Ferrara by the Detroit
Free Press. "Judge Ferrara is no racist" says Avelia
Smith. "I know her to be a decent and kind person." Ms.
Smith reports that in August 1994 she attended a political rally
at Belle Isle and was stranded with no way home. She had asked
several people for help and was turned down. Ready to give up all
hope, she approached a woman who she did not know. The woman
readily agreed to give her a ride and drove her home to VanDyke
& Mack area. This good deed was not forgotten. In March 1997,
Avelia was watching the evening news and immediately recognized
the woman who extended an act of kindness to her 3 years ago. It
was Judge Andrea J. Ferrara.

Avelia Smith tried to reach Judge Ferrara at
her office to lend support. However Judge Ferrara could not be
reached due to a medical leave. Ms. Smith did not give up. She
kept calling and finally was able to make contact with Judge
Ferrara.

Ms. Smith wants the Detroit community to know
the kinder, gentler side of Judge Ferrara. "Giving a black
woman stranger a ride home from Belle Isle does not reflect
racism," says Smith.

It is important to note that despite repeated
attempts to contact the Detroit Free Press no one has bothered to
return my calls. Apparently they only want to print what supports
their agenda.

Many of my friends in the Detroit community
believe this is a subterfuge to divert attention away from the
real racism which is the abolition of Detroit Recorders Court by
the Engler Administration.

Avela Smith

# 313 5211315

11413 Kenmoor

Det Mich

48205

[Name and address in cursive penmanship; body
of letter printed.]

[15] Ms. Smith’s testimony on direct
examination and the corresponding and illuminating voir dire are,
in relevant part, as follows:

Q. . . . Let
me show you what has been marked as Exhibit H and ask if that is
a letter which you wrote to a newspaper?

A. Yes, I had someone write
it out for me because my handwriting is not to legible, and I
signed it.

Q. The person who wrote that
out, did they do so at your request?

A. Well, yes, I requested it.

Q. And to what newspaper was
that addressed?

A. To the Chronicle.

Q. Do you know whether it was
published or whether there are plans for publication?

A. Well, I talked with Sam
Logan and he said there are plans for publication.

* * *

VOIR DIRE

Q. What does the word
"subterfuge" mean?

A. "Subterfuge?"

Q. Yes.

A. I don’t know.

Q. You don’t know?

A. No. Would you tell me what
it means?

Q. Not at this time. Who
wrote this letter?

A. Well, someone wrote it. A
friend.

Q. Who is the someone?

A. A friend.

Q. Who is the friend?

A. I had rather not say.

Q. Well, you are under oath
and you are obligated to say. So would you please tell the Court
who it is that wrote this letter that has been marked as Exhibit
H.

The Court: you have to
answer, Ms. Smith.

Q. . . . Who
wrote the letter, ma’am?

The Witness:I have to
answer that?

The Court: Yes.

A. Well, I had Judge Ferrara
write that for me.

Q. . . . And
when did Judge Ferrara write it?

A. About two weeks ago.

[16] Indeed, Smith. before voir dire by the
examiner, testified:

Q. Do you know whether [the
letter] was published or whether there are plans for publication?

A. Well, I talked with Sam
Logan and he said there are plans for publication.

Moreover, when the examiner objected to
admission of the letter on the basis of relevance, respondent’s
counsel replied:

Mr. Bendure: We have had
newspaper articles admitted over our objection by the examiner
and I want to get into the other side of the story.